Civil Law Book 1

Front 1

Article 27:

articulo mortis

Back 1

In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives.

Front 2

Rule if both parties are at Point of Death

Back 2

There can be a valid marriage, provided that all the essential requisites are present. It is clear that the parties concerned must be conscious of what they are doing.

Front 3

Article 28:

Marriage in a Remote Place

Back 3

If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license.

Front 4

Article 29:

Affidavit in the two preceding articles

Back 4

In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage.

Front 5

Purpose of the Affidavit

Back 5

- to prove the basis for exemption from the marriage license. Even if there is failure on the part of the solemnizing officer to execute the necessary affidavit, such ireegularity will not invalidate the marriage for the affidavit is not being required of the parties.

Front 6

Article 30:

Original of the Affidavit

Back 6

The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage.

Front 7

Article 31:

articulo mortis (ship/airplane)

Back 7

A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call.

Front 8

Article 32:

articulo mortis (military)

Back 8

A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians.

Front 9

Article 33:

Muslims and other ethnicity

Back 9

Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices.

Front 10

Article 34:

Marital Cohabitation

Back 10

No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties are found no legal impediment to the marriage.

Front 11

Marital Cohabitation:

5-year period

Back 11

The 5-year period is to be computed on the basis of cohabitation as husband and wife where the only missing factor is the marriage contract to validate the union. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity –meaning no third party was involved at any time within the 5 years and continuity that is unbroken

Front 12

Marital Cohabitation:

Requisites

Back 12

1. Man and woman must have been living together as husband and wife for at least five years before marriage

2. The parties must have no legal impediment to marry each other

3. The fact of absence of legal impediment between the parties must be present at the time of marriage

4. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other]

5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage

Front 13

AUTHORIZED VENUES FOR MARRIAGE

Back 13

General Rule: Must be solemnized publicly, and not elsewhere, in the:

1. Chambers of the judge or in open court

2. Church, chapel or temple

3. Office of consul-general, consul or vice-consul

Front 14

Distinction Between a Void and a Voidable Marriage

Back 14

Front 15

Two Kinds of Impediments in Marriages

Back 15

1. Diriment impediments

2. Prohibitive impediments

Front 16

Diriment impediments

Back 16

They make the marriage void.

Examples:

1. Close blood relationship

2. prior existing marriage

Front 17

Prohibitive impediments

Back 17

They do not affect the validity of the marriage, but criminal prosecution may follow.

Front 18

Another Classification of the Impediments

Back 18

1. Absolute

2. Relative

Front 19

Absolute Impediments

Back 19

Here the person cannot marry at all.

Example: When one is below the required age of 18.

Front 20

Relative Impediments

Back 20

Here the prohibition is only with respect tocertain persons.

Example: A brother cannot marry his sister.

Front 21

Article 35:

Void from the beginning

Back 21

The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

(3) Those solemnized without license, except those covered the preceding Chapter;

(4) Those bigamous or polygamous marriages not failing under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the other; and

(6) Those subsequent marriages that are void under Article 53.

Front 22

Void ab initio under Art. 35

Back 22

1. Contracted by any party below 18 years old

2. Solemnized by unauthorized solemnizing officer (Except if either or both parties believed in good faith that the officer had authority)

3. Solemnized without marriage license (Except when license not required) 4. Bigamous or polygamous marriages (Except: Art. 41)

5. Mistake in identity

6. Subsequent marriage void under Art. 53

Front 23

Article 36:

Void marriages

Back 23

A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

Front 24

Psychological incapacity

Back 24

Has no exact definition but is restricted to psychological incapacity to comply with the essential marital obligations of marriage. It involves a senseless, protracted, and constant refusal to comply with the essential marital obligations by one or both of the spouses although he, she, or they are physically capable of performing such obligations (Chi Ming Tsoi v. CA 266 SCRA 234 [1997])

Front 25

Article 36 Elements

Back 25

1. Mental disposition

2. Applies to a person who is martially-contracted to another

3. Marriage entered into with volition

4. Failure to perform or comply with the essential obligations in marriage

5. Failure to perform is chronic

6. Cause is psychological in nature

7. Cause is serious, with juridical antecedence and must be incurable

8. Incapacity results in the failure of the marriage

Front 26

Jurisprudential Guidelines

Article 36

Back 26

1. Burden of proof to show the nullity of marriage belongs to plaintiff

2. The root cause of the psychological incapacity must be: a. Medically or clinically identified b. Alleged in the complaint c. Sufficiently proven by experts d. Clearly explained in the decision

3. The incapacity must be proven to be existing at the time of the celebration of the marriage.

4. Such incapacity must be shown to be medically or clinically permanent or incurable

5. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage

6. Essential marital obligations must be those embraced by Art. 68-71, as well as Art. 220, 221, and 225 of the Family Code.

7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts

8. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state

Front 27

Article 37:

Incest

Back 27

Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half blood.

Front 28

How degrees of generation are computed?

Back 28

(a) In the direct line, count All who are included, then minusone. Herein, a granddaughter is two degrees away fromthe grandfather (GF-F GD=3-1=2 degrees).

(b) In the collateral line — go up to the nearest commonancestor, then go down minus one. (Hence, brothers are2 degrees apart [13,-F-B2 = 3-1=2].)

Front 29

Article 38:

Void for Reason of Public Policy

Back 29

The following marriages shall be void from the beginning for reasons of public policy:

(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;

(2) Between step-parents and step-children;

(3) Between parents-in-law and children-in-law;

(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child;

(6) Between the surviving spouse of the adopted child and the adopter;(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse.

Front 30

Under the new Family Code, the following can now marry each other:

Back 30

1. Brother-in-law and sister-in-law

2. Stepbrother and stepsister

3. Guardian and ward

4. Adopted and illegitimate child of the adopter 5. Parties who have been convicted of adultery or concubinage

Front 31

Other Void Marriages

Back 31

(a) Marriages in a play, drama, or movie.

(b) Marriages between two boys and two girls.

(c) Marriages in jest.

(d) Common law marriages.

Front 32

A girl married a man who, unknown to her, was alreadymarried to another, who was still alive. Is the marriage validor void?

Back 32

The marriage is Void and Bigamous, thegood faith of the girl being immaterial.

Front 33

A woman with a child A got married to a man with achild, B . May A and B get validly married to each other?

Back 33

Yes, because although they are considered asstepbrother and stepsister of each other, still such a marriage,while prohibited under the Civil Code, is now allowed underthe Family Code.

Front 34

A marries B, who has a daughter C. When B dies, may A marry C?

Back 34

No, because he is her stepfather.

Front 35

A marries B. May A’s mother marry B’s father?

Back 35

Yes, because the law provides no impedimentfor them, assuming that all other requisites are present.

Front 36

A adopts B

Back 36

They cannot marry.

Front 37

A adopts B, a boy. Later, A marries C. Subsequently, A dies. May B marry C?

Back 37

No, because the adopted child (B) cannotmarry the surviving spouse of the adopter (A).

Front 38

A adopts B, a boy. Later, B marries C. Subsequently, Bdies. May A marry C?

Back 38

No, because the adopter (A) cannot marrythe surviving spouse of the adopted child (B).

Front 39

A and B are validly married. Later, B commits adulterywith C. B and C are convicted. Later, after prison, if A is alreadydead, may B marry C?

Back 39

Yes, for there is no prohibition under the law.

Front 40

May a Roman Catholic priest get married?

Back 40

Yes, under the civil law, for his being a priestis not, under our law, a disqualifi cation. Thus, it is legally possiblefor such a priest to have a legitimate child.

Front 41

Article 39:

Absolute nullity of Marriage

Back 41

The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by Executive Order 227 and Republic Act No. 8533; The phrase"However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect"has been deleted by Republic Act No. 8533 [Approved February 23, 1998]).

Front 42

Article 40:

Without judicial declaration of nullity of previous void marriage

Back 42

The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

Front 43

purposes of remarriage

Back 43

the only legally acceptable basis for declaring a previous marriage an absolute nullity is a final judgment declaring such previous marriage void, whereas, for purposes other than remarriage, other evidence is acceptable

Front 44

In a case for concubinage

Back 44

the accused need not present a final judgment declaring his marriage void for he can adduce evidence in the criminal case of nullity of his marriage other than proof of final judgment declaring his marriage void. Hence, the pendency of the civil action for nullity of marriage does not pose a prejudicial question in a criminal case for concubinage.

Front 45

judicial declaration of nullity is not needed

Back 45

where no marriage ceremony at all was performed by a duly authorized solemnizing officer as where the parties merely signed a marriage contract on their own.